Dalkon Suit Could Prolong Victims' Wait

WASHINGTON — The calls come to Alan Morrison all the time now, from women injured by the Dalkon Shield who say that he is going too far, that he is only prolonging their agony.

He is told constantly that he has almost no support for his final crusade against the manufacturer of the defective contraceptive device, that the victims have already voted overwhelmingly for a plan to drop their lawsuits, that he should compromise like everyone else and fall in line.

But a week ago, Morrison - Ralph Nader's chief litigator and the central figure in the last, bitter chapter in the long history of the Dalkon Shield - went ahead anyway, taking his objections to the proposed mass settlement of the Dalkon Shield litigation to the Supreme Court.

The appeal Morrison has filed - the culmination of a series of legal challenges that have delayed payment of damages to Dalkon Shield victims for over a year - has thrown the future of last summer's carefully crafted settlement into doubt, raising the possibility that if the Supreme Court agrees to hear the petition, women who have waited since the early 1970s to be compensated for their injuries will be forced to wait even longer.

Morrison's appeal also has changed dramatically the complexion of the now legendary legal battle over the device, turning the once united effort of victims and plaintiff lawyers into a movement divided against itself.

"This has been going on for 20 years," said Donna Reeck, one of the 95 percent of Dalkon Shield victims who voted for the plan last summer. "A lot of times I feel emotionally raped . . . There has to be a healing process now. We have to go forward so I can get on with my life. I don't want to be victimized a second time."

At issue in the appeal is a section in the settlement plan that protects senior officials of A.H. Robins Co. - the Richmond, Va., drug firm that sold the device from 1971 to 1974 - from all future lawsuits arising from the case.

The legal exemption was always a controversial part of the plan, because of plaintiffs' claims that Robins executives - including the Robins family that ran and owned much of the company - were personally negligent in their handling of the Dalkon Shield, ignoring or concealing evidence of its danger and delaying its eventual recall. But during the three-year process of negotiating an end to the dispute, it was considered an unavoidable concession, a compromise justified by the fact that in return, the firm agreed to set up a $2.5 billion trust fund to compensate those who claimed to have been injured by the device.

"I feel very strongly that the Robins family should not come out smelling like a rose as a result of this settlement," said Mike Pretl, a Baltimore lawyer who represents several hundred Dalkon Shield victims.

"But what it comes down to is hard dollars . . . The bottom line in any settlement is that I don't care what the other side gets as long as my clients get what they need. We've got close to $3 billion. I think this is the most successful settlement from any product liability case in history."

Morrison and the small group of women he represents in his appeal to the Supreme Court have never agreed.

"Many of the women who are most injured in this case are not just concerned about money," Morrison said. "They want fairness and justice. They want retribution for what has happened. It isn't enough to get money from some inanimate corporate object. They want to see that the individuals who are responsible for this harm to so many women are brought to a court of law."

Morrison's appeal to the Supreme Court is the last act in a legal battle that began in 1974, when the Dalkon Shield - one of the most highly touted of the many intrauterine devices that rose to prominence in the 1960s - was taken off the market by A.H. Robins.

Because of a defect in its design, the tiny plastic device substantially increased the risk of pelvic infection. Over the following decade Robins paid out hundreds of millions of dollars in damages and faced thousands of lawsuits from Dalkon Shield wearers suffering everything from severe abdominal pain to infertility.

By 1985, facing insurmountable legal obstacles, Robins sought refuge under Chapter 11 of the federal bankruptcy code. Under the direction of a federal court in Richmond, it began negotiating a single, comprehensive class action settlement to compensate the almost 200,000 women who claimed to have suffered injury from the device.

The plan settled on a compromise. The victims' claims were valued at $2.5 billion, a figure substantially higher than the Robins officials had ever contemplated paying to Dalkon Shield wearers. In exchange, the company received assurances that after paying that sum up front, their role in the case would be over.